SAMUEL A. ROBINSON, Claimant Below, Petitioner
WEST VIRGINIA OFFICE OF INSURANCE COMMISSIONER, Commissioner Below, Respondent and EASTERN ASSOCIATED COAL, LLC, Employer Below, Respondent
Appeal No. 2051396, Claim No. 2000045824
Samuel A. Robinson, by Patrick K. Maroney, his attorney,
appeals the decision of the West Virginia Workers'
Compensation Board of Review. The West Virginia Office of the
Insurance Commissioner, by Henry C. Bowen, its attorney,
filed a timely response.
issue on appeal is whether a lumbar CT scan should be
authorized. The claims administrator denied Timothy Deer,
M.D., 's request for a lumbar CT scan on July 15, 2015.
The Office of Judges affirmed the decision in its June 9,
2016, Order. The Order was affirmed by the Board of Review on
December 1, 2016. The Court has carefully reviewed the
records, written arguments, and appendices contained in the
briefs, and the case is mature for consideration.
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
is appropriate under Rule 21 of the Rules of Appellate
Robinson, a brakeman, suffered a lower back lifting injury in
the course of his employment on March 5, 2000. The report of
injury indicates he was diagnosed with low back strain injury
or a herniated disc. The diagnostic codes provided were
lumbar sprain/strain and overexertion and strenuous and
repetitive movements or loads. The report stated the injury
aggravated a chronic or prior injury, noting Mr. Robinson had
a history of low back injury. The claim was held compensable
for lumbar sprain on April 11, 2000. A claims administrator
decision dated January 25, 2006, listed the compensable
diagnoses as lumbar sprain; lumbosacral joint ligament
sprain/strain; reaction to spinal or lumbar puncture;
depressive disorder; major depressive disorder; unspecified
neuralgia, neuritis/radiculitis; other/unspecified disorder
of lumbar region; and lumbosacral neuritis or radiculitis.
August 15, 2001, independent medical evaluation, George
Orphanos, M.D., found that Mr. Robinson sustained a
musculoligamentous type injury involving the lumbar spine as
a result of a work-related accident superimposed on
pre-existing spondylosis at L5. Dr. Orphanos noted that he
had pre-existing spondylosis at L5 and also noted
degenerative bulging discs at L4-5 and L5-S1. Mr. Robinson
was found to be stable and at maximum medical improvement.
treatment note dated July 29, 2009, Rajesh Patel, M.D.,
assessed lumbar sprain, spinal stenosis, lumbar disc
protrusion, facet arthropathy, and spondylosis bilaterally at
L5. Dr. Patel explained to Mr. Robinson that the stenosis at
L4-5 could be causing some of the leg symptoms; however,
without a myelogram or MRI it would be difficult to determine
the exact amount of stenosis. Dr. Patel noted that Mr.
Robinson had an allergic reaction to dye in the past so an
MRI was not possible. He recommended decompression at L4-5
without fusion. He explained that the fusion would have to be
two levels and may not be in his best interest. If Mr.
Robinson continued to get adequate pain relief from the pain
pump, he recommended holding off on fusion.
Mukkamala, M.D., performed an independent medical evaluation
on August 9, 2013, in which he diagnosed lumbar sprain and
found that Mr. Robinson had reached maximum medical
improvement. It was noted that his recovery was delayed by
naturally occurring degenerative spondylosis and disc
Robinson testified in a deposition on November 14, 2014, that
he was injured at work while lifting. He experienced severe
back pain and was taken to Raleigh General Hospital by
ambulance. He had severe pain in his lower back and burning
pain down both legs into the feet. Mr. Robinson asserted that
he had none of these symptoms prior to the injury. He
testified that he has a spinal cord stimulator which helps
with the back pain but not the leg and feet pain. He
explained that Dr. Deer wants him to have surgery to install
a larger implant or paddle stimulator.
claims administrator denied Dr. Deer's request for a
lumbar CT scan on July 15, 2015. The Office of Judges
affirmed the decision in its June 9, 2016, Order. It found
that the claim is now over sixteen years old. Mr. Robinson
has been found to be at maximum medical improvement several
times over the years including in 2001 by Dr. Orphanos and in
2013 by Dr. Mukkamala. He has even been granted a 12%
permanent partial disability award. Dr. Mukkamala found in
his independent medical evaluation that Mr. Robinson required
no further treatment other than a home exercise program. Dr.
Mukkamala opined that his ongoing symptoms are the result of
degenerative changes, noting naturally occurring degenerative
spondylosis and disc degeneration. The Office of Judges
determined that the request for a lumbar CT scan is far
beyond the treatment guidelines of West Virginia Code of
State Rules § 85-20 (2006). The Office of Judges
concluded that Mr. Robinson failed to provide sufficient
evidence to show that treatment beyond the guidelines should
be authorized. The Board of Review adopted the findings of
fact and conclusions of law of the Office of Judges and
affirmed its decision on December 1, 2016.
review, we agree with the reasoning and conclusions of the
Office of Judges as affirmed by the Board of Review. Mr.
Robinson failed to show by a preponderance of the evidence
that the requested CT scan is medically related and
reasonably required treatment for his compensable injury.
foregoing reasons, we find that the decision of the Board of
Review is not in clear violation of any constitutional or
statutory provision, nor is it clearly the result of
erroneous conclusions of law, nor is it based upon a material
misstatement or mischaracterization of the evidentiary
record. Therefore, the decision of the Board of Review is
CONCURRED IN BY: Chief Justice Allen H. Loughry II Justice
Robin J. Davis Justice Margaret L. Workman Justice Menis ...